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and 136 New York State Reporter court to allow the plaintiff, Warren McConihe, in the foreclosure action, to hold the mortgage. Said McConihe stated in ope" court that he would not take any further steps in the foreclosure action unul the determination of the partition suit.

Warren McConihe, for plaintiff and for defendants Bernhard Gies and Elizabeth Gies Meyer.

Louis Wendel, Jr., for defendant Joseph Gies.

OF

OF

BISCHOFF, J. The moving defendant seeks an assignment of the mortgage, not for the actual protection of his interests in the foreclosure suit, but to give him an advantage in controlling the ultimate disposal of the property as against other parties equally interested. The court has discretion to refuse subrogation, when sought by motion in the action for foreclosure (McLean v. Tompkins, 18 Abb. Pr. 21); and the facts before me lead to the conclusion that the motion should be denied, upon the plaintiff stipulating to take no further proceedings in this action pending the termination of the partition suit.

Ordered accordingly. (116 App. Div. 763)

CUSHMAN V. CUSHMAN et al. (Supreme Court, Appellate Division, Secondi Department. January 18. 1907.) 1. WILLS-CONTINGENT ESTATES-PERFORMANCE CONDITION-POWER

JUDGMENT.

A testator gave the residuary estate to his executors in trust, to pay the income to his three sons. At a fixed period, if any of the sous in the judgment of the executors showed certain qualities, it empowered the executors to pay over the corpus to him; otherwise it continued the trust. If, however, at any time subsequent thereto, any son who had not been qualified at the fixed period should in the judgment of the executors reveal those qualities, it then empowered the executors to pay over the corpus; otherwise it continued the trust. Lcld, that the exercise of judgment as to the fulfillment of the condition was lodged solely in the executors, and, if they refused or neglected to exercise it, the gift could not be enforced, unless the refusal proceeded from a vicious, cor

rupt, or unreasonable cause. 2. SAME-ACTIONS BY LEGATEE-EVIDENCE-SUFFICIENCY.

In an action to recover the corpus of an estate, and for an accounting evidence examined, and held to sustain the decision of the referee that the cestui que trust had not rerea led his capacity to prudently use, man.

age, and dispose of the property, if turned over to him. 3, PERPETUITIES–SUSPENSION OF POWER OF ALIENATION-WILLS-CONSTRUC

TION.

Under a will the residuary estate was given in trust to the executors, to pay the income to the testator's three sons "until my youngest child now living shall have attained the age of 25 years, or until such time as such youngest child would, if living, bave attained the age of 25 years," and upon the happening of that event the executors were directed to pay over the corpus of the estate to the sons. The will further provided that, in case of the death of any of said three children, leaving no lawful issue surviving, before receiving actual possession of his share of the estate, then and in such case the share of such child or children so dying should go to the testator's brother, but, otherwise, to the lawful issue of such of the testator's children as might die leaving lawful issue him or them surviving. Held, not to create a trust which suspenda alienation for a longer period than two lives in being.

TION.

4. TRUSTS-V’ALIDITY-CONTEST—WILLS-CONSTRUCTION-PERSONS INTERESTED.

Where a person interested in an estate left to him in trust by a will acquiesces in the validity of the trust, and there has been a long-continued course of contemporaneous construction, wherein the court disposed of matters upon the theory that the trust existed, an action brought by him to repudiate the validity of the trust is not one that appeals to a court of equity.

[Ed. Note ---For cases in point, see Cent. Dig. vol. 47, Trusts, $$ 73, 75.) 5. WILLS—CONTINGENT ESTATES-ENJOYMENT OF INCOME BEFORE DISTRIBU

Real Property Law, Laws 1896, p. 564, c. 547, § 30, provides that future estates are either vested or contingent. Section 47 (page 567) provides that an expectant estate may be defeated in any way which the party creating such estate in the creation thereof has authorized, but that such estate shall not on that ground be adjudged void in its creation. A testator gave the residuary estate in trust to pay the income to his sons until the youngest should be 25 years of age, when his share shou be distributed to him, if he fulfilled certain conditions, and, if not, then the trust should be continued until he did fulfill the conditions. If he died before receiving possession of his share of the estate, leaving issue him surviring, then his share should go to them, but otherwise it should go to the testator's brother. The son never fulfilled the conditions, and died without issue. Held, that the estate created was a future contingent estate, and hence never vested in

the son. 6. SAME-LIMITATION OVER-VESTED REMAINDER.

Where a testator gare the residuary estate in trust for his three sons, to be paid to them upon the fulfillment of certain conditions only, and in case any of them died before receiving possession, leaving issue them surviving, then to their children; but, if they died without the conditions being fulfilled, or leaving no children, then the estate to go to the testator's brother, the gift over to the brother was a contingent

estate in remainder, vesting in the brother at the testator's death. 7. EXECUTORS-APPOINTMENT--CODICIL.

Where a will named two individuals as executors, and the codicil substituted two different individuals, and the testator cast no duty upon the individuals first named, other than perforce of their nomination to the executorships, and did not withhold from the second nominees any of the powers conferred upon the first nominees, the second nominees have the same rights and powers as though they had been originally named

in the body of the will. 8. TRUSTS-TRUSTEES-DUTIES ANNEXED TO OFFICE OF EXECUTOR-RESIGNA

TION.

When a trust is annexed to the office of executor, then the resignation

of the latter office carries the relinquishment of the former place. 9. EXECUTORS-SEVERAL EXECUTORS-ONE ACTING-POWER.

Where a power has been given to several executors, but only one of them acts as such, the others having resigned, he can alone exercise

the power. Appeal from Special Term, Kings County.

Action for an accounting by Mary F. Cushman, as executrix of the last will and testament of Thomas H. Cushman, deceased, against Harry C. Cushman, individually, and as executor of the last will and testament of Paul Cushman, and as administrator de bonis non of the goods of Robert S. Cushman, deceased, and others. From a judgment dismissing her complaint, plaintiff appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

and 136 New York State Reporter Frederick Seymour (Maurice Leon, on the brief), for appellant. Henry W. Simpson, for respondents.

JENKS, J. The defendants demurred to the complaint with success at first, but this court reversed the interlocutory judgment. They pleaded anew and have succeeded upon the trial before the referee. The opinion of the court upon the first appeal (92 N. Y. Supp. 833) written by Willard Bartlett, J., states the preliminary facts and defines the issues. The opinion of the learned referee upon the trial also lightens my labor.

The scheme of the testator dealt with his three sons alike. Generally speaking, it gave the residuary estate to his executors in trust to pay the income to the sons. At a fixed period, if any of the sons in the judgment of the executors showed certain qualities, it empowered the executors to pay over the corpus to him; otherwise it continued the trust. If, however, at any time subsequent thereto, any son who had not been qualified at the fixed period should in the judgment of the executors reveal those qualities, it then empowered the executors to pay over the corpus; otherwise it continued the trust. The plaintiff does not contend that the son Thomas (with whom alone we are dealing) was qualified to receive the corpus at the fixed period, but that about 10 years thereafter, while the executor was alive, and ever after, Thomas became qualified, not only in fact, but also in the judgment of the executor, within the purview of the scheme to receive the corpus. The suit in brief is to recover the corpus and for an accounting as to it.

There is no proof whatever against the finding that this son never so reformed his habits and so conducted himself as rendered him in the judgment of the executor of the said will, Paul Cushman, competent to manage and properly use and dispose of the share of his estate. Inasmuch as the testator had constituted the executors the judges of such competency, it was not enough for the plaintiff to establish to the satisfaction of the court that this son had so reformed and had so conducted himself as to be competent. If this sufficed, then, in effect. contrary to the express requirement of the testator, the court, and not the executors, is the judge of such competency. Hill on Trustees, marginal pages 485, 502, says:

"If the trustees refuse or neglect to exercise it (the power), the gift cannot be enforced. And in such cases the court cannot decide upon the propriety or impropriety of the refusal by the trustees to give their assent, unless the refusal be shown to proceed from a vicious, corrupt, or unreasonable cause. And it will rest with the other party to prove the existence of an improper motive, and not with the trustees to show a reason for their refusal."

This decision, if made in good faith in the fair exercise of discretion, should not be disturbed by the court. See Perry on Trusts, $$ 507-519, especially section 508; Hawley v. James, 5 Paige, 468; Colvin v. Young, 81 Hun, 116, 30 N. Y. Supp. 689.

I think that the rule obtains to the extent expressed in the first sentence quoted from Hill, supra, “If the trustees refuse or neglect." And hence it matters not that there is no express proof of any application by this son to the executor. There was no fixed period, after the expiring of the first period, when the executor should determine as to the son's habits and competency, and hence the executor was not called upon at any definite time to decide that question. If the son thought at any time that he met the conditions, it was his duty to call for the exercise of the power by the executor. His neglect to do so for 10 years after it is asserted that he was entitled to the exercise of the power should not now make for him or his representatives so as to secure the judgment of the court in place of the judge constituted by the testator. Without consideration of all absence of proof that the executor at any time was requested to make over the fund, if I am right in my view, the plaintiff cannot virtually depose the judge chosen by the testator, set up the court in his place, and contend that, if the court is satisfied that the son had reformed and had become competent, it is enough to remove the condition. It seems to me that the plaintiff must show that the failure of the executor to act is attributable to selfish, corrupt, or improper motives, and could not be attributable to a fair exercise of discretion upon the facts. However this may be, I am convinced that, even if the court were the tribunal of the first instance to determine this question, there is no evidence which would justify a finding for the plaintiff. The expressions of the testator with reference to the first period are:

"Provided, however, that such sons are then, or shall at that time be, of good moral habits and shall be in the judgment of my said executors compe tent to take charge of and prudently use, manage and dispose of such shares, but in case

shall

be of so immoral, prodigal or improvident habits and character as shall render him

incompetent to properly and prudently use and manage

in the judgment and opinion of my said executors."

As to the second period, they are:

"In case either of my said sons, who shall or may be incompetent at the period above mentioned in the judgment of my executors to receive and properly manage his share or portion of my estate, shall at any time afterwards so reform his habits and so conduct himself as to render him in the judgment of my said executors competent to manage and prudently use and dispose of his said share or portion of my estate, that then and in such case" the executor may pay over.

And then finally: "It is hereby expressly declared to be my desire, wish and Intention to vest my said executors and their survivor with the discretion of judging in regard to the capacity, moral character and habits of my said sons in respect to their competency respectively to properly and prudently manage and dispose of their respective shares in my residuary estate, and to withhold the said principal of said shares from either or any or to convey and transfer the same to either or any of my said sons, as the exercise of their sound discretion and honest judgment in the premises shall deem fit and proper and in accordance with my will herein expressed in regard to my sons, but neither of my said executors “hall in any manner be held liable for any error of judgment in the premises."

The scheme of the testator is not one of punishment for immorality and reward for reform by withholding or bestowing the corpus of the fund. His main intention is to make secure provision out of his estate for his sons. To that end he fastens a trust upon the fund which may cease if provisions may be made reasonably secure without it. The conditions of cessation of the trust are moral character and comand 136 New York State Reporter petency to: prudently use, manage, and dispose of the fund itself. Moral character alone does not satisfy the conditions, for the testator is not satisfied that this alone will preserve the estate; but there inust be business capacity. Moral character might assure that the money would not be dissipated in immoral ways, but it would afford no assurance—the examples to the contrary are countless—that, however ascetic and unspotted from the world the son might be, he had the capacity properly and prudently to manage and to dispose of the corpus. The testator does not regard alone how the money may be expended, of which morality may assure propriety, but whether it may be managed and prudently used and disposed of. If there be no assurance of this, then the property is to be preserved by the trust fastened upon it.

The case as presented may be thus summarized. At the first fixed period this son was not qualified in any way to receive the corpus. Some time in 1888 he became temperate, and thereafter was a total abstainer. His habits of private life were good. He did not gamble, he did not make reckless expenditures, and he was a careful buyer of cigars for his business as an innkeeper. On the other hand, he had been in the receipt of the income of $50,000 for a period beginning before his majority, until he was 44 years old, and he was not required by his station in life, or by claimants upon his bounty, to make any expenditures. He had little to show for the income of those many years. He had ventured in the coal business and had lost from $14,000 to $10,000, and had spent his money foolishly, as he admitted. When he was set up in business as a hotel keeper, he had failed to make the business profitable. These were all of his business undertakings. He had at different times expressed the wish to venture in the ice business, in a brewery, in farming ; but nothing came of them. He seems to have drifted along without exertion or energy, enterprise or business achievement, dependent upon his income, which, in the latter years of his life, he often outran. With this history before us, can it be said that a fair-minded executor, or, disregarding the judge selected by the testator, that any person in the exercise of said judgment could conclude that the fund should be freed from the trust because the cestui que trust had revealed his capacity to prudently use, manage, and dispose of a fund of $50,000? Upon the facts I can see no ground for disturbing the decision of the learned referee. Lowery v. Erskine, 113 N. Y. 52, 20 N. E. 588.

The point is made first in this court that the trust made by the eighth clause of the will is invalid, for the reason that it suspends the power of alienation for more than two lives in being. The argument is that, as the trust cannot terminate until the "youngest child now living shall attain the age of 25 years, or until such time as such youngest child would if living have attained to the age of 25 years," the trust is not for the life of this son, but is to continue until a definite period, namely, that when the youngest son would if living be 25 years old. Although the estate was consolidated into one trust, it was for the purpose of dividing and paying over the income to the three sons equally, to each one-third. Moreover, the testator expressly provides that, if the share had not been theretofore paid over, “in case of the death of

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